Minor guardianship history and statutes

History

Traditionally, minor guardianships were fairly simple cases, necessary when parents died or were temporarily unable to care for their children. Most cases were uncontested. The statute was designed to be “easy in, easy out,” with a simplified process and fill-in-the-blank forms.

In the 1990's, however, everything changed. Probate judges found themselves inundated with complex and bitterly contested minor guardianship disputes, caused by a confluence of factors, including a significant shift in the policies of the Illinois Department of Children and Family Services (DCFS) and a seismic cultural change.

The seismic cultural change has been well-reported. Drugs, mental illness, poverty, and joblessness have all contributed to this phenomenon. Relatives take care of children when their own parents cannot. As more guardianship cases are filed, more contests and family disagreements arise. The law changed in January 2011. Further changes were made to the law on January 1, 2015 to impose new requirements on guardians who wish to travel or move out of state with the minor child or children in their care.

The Illinois Probate Act

The statute governing guardianship of minors is the Illinois Probate Act, 755 ILCS 5/11-1, et seq. Although instructive in some aspects, it is not comprehensive.

Illinois law recognizes the superior rights of parents to the care and custody of their children. As a result, a nonparent cannot petition for guardianship of a child unless both parents agree to it or the nonparent has standing—the right to petition.

In 2011, the Probate Act was amended to clarify how and when a non-parent has standing to seek guardianship. A non-parent has standing to petition for guardianship if each parent:

Voluntarily relinquished physical custody of the child and is unwilling or unable to make and carry out day to day child care decisions

Failed to appear for a hearing after proper notice and is unwilling or unable to make and carry out day to day child care decisions

Consented to the guardianship, either in open court or by a written document that is dated, signed and notarized

The statutory amendment tracks custody language in the Illinois Marriage and Dissolution of Marriage Act, (750 ILCS 5/101et. seq.), so there is a substantial body of case law that offers guidance in minor guardianship cases. Now, the court will first look to see whether parents have either voluntarily relinquished physical custody of a child, failed to appear after receiving proper notice of a court hearing, or consented to the guardianship. For instance, if a child is living with a parent, or if the parent is otherwise exercising control over the child’s affairs, such as communicating with the child’s teachers, taking the child to the doctor, etc., a nonparent will not have standing to petition for guardianship without the parents' consent. But if a parent left a child at a granparent's house for an extended period of time, has remained incommunicado and no one knows where he or she is, the grandparent may have the right to petition for guardianship. At that point, and only then, can the court consider the parent’s willingness and ability to make and carry out day-to-day child care decisions.

The Probate law also provides a way for parents to discharge a guardianship. Once a parent establishes, by a preponderance of the evidence, that there has been a material change of his or her circumstances, the guardian has to prove, by clear and convicing evidence, that terminating the guardianship is not in the child’s best interests. These non-exclusive, non-economic factors are to be used by the court in determining those best interests:

The interaction and interrelationship of the minor with the parent and members of the parent’s household

The ability of the parent to provide a safe, nurturing environment for the minor

The relative stability of the parties and the minor

The length of time the minor has lived with the parent and the guardian and the minor’s adjustment to his or her home, school, and community

The nature and extent of visitation between the parent and the minor and the guardian’s ability and willingness to facilitate visitation

Other related custody and guardianship statutes

Illinois has 6 statutes, including the Probate Act, that provide for an award of custody:

Each of these statutes treats custody differently. The Probate and Juvenile Court Acts don’t even call it custody. No matter what it’s called, however, the superior rights of the parent are paramount and the best interest of the child is the goal.

This article will explain what Probate guardianship is, how it is different from other custody statutes, and when it is appropriate.

What is guardianship?

Guardianship, under these statutes, gives a nonparent legal custody of the child and corresponding parental responsibilities. Guardians must ensure that the child receives proper medical care, an education, and is properly fed, housed and clothed. A guardianship makes it possible for a nonparent to step into the role of a parent in order to care for a child.

Person: A guardianship of the person is used when the minor owns no property and has no income. Maintenance income such as public aid, Supplemental Security Income (SSI), or Social Security does not count as income.

Estate: A guardian of the estate has the care, management, and investment of property owned by the minor. She must manage the estate frugally to preserve as much as possible for the child when he reaches majority. This guardianship is usually necessary if the minor owns property such as bank accounts, insurance proceeds or real estate.

Person & Estate: A guardian of the person and the estate combines the two.

Guardianship terminates, by operation of law, when the minor turns 18 years old.

Guardianship ad litem

A guardian ad litem(GAL) is a separate type of legal representation. This type of representation is normally appointed by a judge in a domestic relations case that involves custody or visitation. For more information about working with a GAL in a case, see "Working Effectively with a Guardian Ad Litem."

How is guardianship different from custody under the IMDMA and the Parentage Act?

Parents do not need to obtain guardianship of their own child

Parents are the child’s legal guardians by operation of law. A parent who needs a custody order should file under the Illinois Marriage and Dissolution of Marriage Act (IMDMA) or the Parentage Act, not under the Probate Act. A nonparent who wants custody, however, has a choice between the IMDMA and the Probate Act.

Procedural differences

The procedure for obtaining guardianship is considerably different than the one for custody. The Probate Act requires that a parent be given notice prior to the entry of a guardianship order. Personal service is not required. If actual notice is not possible, service by publication is acceptable.

The Cook County Probate Court requires a criminal and Illinois Department of Children and Family Services (DCFS) background check on any person seeking to be appointed guardian of a child. It also requires that same information for any parent who petitions to discharge a guardianship to regain custody of a child. The background check includes the Illinois and the FBI. It does not include other states other than what might appear on someone’s FBI record. The court will not automatically deny the petition of a person with a criminal background, unless it’s a felony involving harm or threat to a child, but will, most likely, appoint a guardian ad litem to investigate and make a recommendation on that person’s appropriateness. Similarly, information found in a DCFS background check officially known as a “Child Abuse and Neglect Tracking” or CANTS report, will not necessarily exclude a person, but will cause the court through a Guardian ad litem to take a closer look.

Guardianships are supposed to be “easy in, easy out.” The IMDMA bars custody modifications within 2 years unless there is a showing of endangerment. There is no corresponding limitation under the Probate Act.

The relative ease of petitioning for modification can be a problem in guardianship cases. An unhappy or difficult parent can, and sometimes will, petition again, and again, and again, to discharge a guardian, wearing down the guardian, the children, and, possibly the court. Although the parent must show a change in circumstances, case law doesn’t give that requirement any substance. Cook County’s Probate Court sometimes includes the IMDMA’s 2-year rule in a court order either granting an initial guardianship or denying a petition to discharge one, and restricts a parent from petitioning for 2 years absent a showing of a change in circumstances. Sometimes the court orders a parent to meet certain conditions before petitioning again, in effect, specifying the necessary change in circumstances.

Under the guardianship law, once a parent establishes, by a preponderance of the evidence that there has been a material change in circumstances, the guardian has to prove, by clear and convincing evidence, that terminating the guardianship is not in child’s best interests. The law instructs the court to consider all relevant factors, but also lists specific factors for the court to consider when evaluating the child’s best interests. Those factors are:

The interaction and interrelationship of the minor with the parent and the members of the parent’s household

The ability of the parent to provide a safe, nurturing environment for the minor

The relative stability of the parties and the minor

The minor's adjustment to his or her home, school, and community, including the length of time that the minor has lived with the parent and the guardian

The nature and extent of visitation between the parent and the minor and the guardian's ability and willingness to facilitate visitation

The “fitness” standard is no longer a consideration for establishment or termination of guardianship and all cases should now apply the standards above.

As a general rule, the guardianship courts will not allow a guardian to relinquish guardianship unless some other appropriate person will step in to take over. In rare cases, the Probate judge may agree to discharge the guardian and refer the case to Juvenile Court. Otherwise, the only remedy for a guardian is to take the child to the police station and refuse to allow her back into the home. DCFS can and most likely will “indicate” a finding of child neglect against the guardian and may bring criminal charges. In addition, DCFS can prosecute the guardian for the cost of supporting the minor.

Nomination

The Probate Act requires that a minor age 14 or older must “nominate” a guardian, although the court retains the authority to appoint one against the minor’s wishes. Under the IMDMA, the minor’s wishes are one of the factors a court must consider when deciding custody. Court’s may give greater weight to older children, but no specific age is mentioned.

How is Probate Guardianship different from a Juvenile Court Guardianship?

Although cases in Juvenile Court and Probate can have similar issues, the proceedings and law are radically different. A typical Juvenile Court case is initiated because DCFS has done an investigation based on a report to their abuse and neglect hotline. The result of their investigation is either “indicated” or “unfounded”. If the case is indicated and DCFS decides to prepare the case for “screening,” the State’s Attorney has the discretion to file a petition asking that the children be removed from the home and placed in foster care. Once the child’s case is in Juvenile Court, the court may consider guardianship a better permanency goal for the child than adoption for a variety of reasons.

How is a Probate Guardianship different from an adoption?

Parental rights are terminated in an adoption and are retained in a guardianship. This is a very important distinction. Parents have a nearly absolute right to visitation under a guardianship. They have no such right if a child is adopted. Similarly, parents have an obligation to support a child living with a guardian. That obligation is extinguished in an adoption. However, as a practical matter, few guardians can count on receiving child support from a parent. Finally, an adoption is permanent, a guardianship is not.

Determining where to file

Why does your client want “custody?” To enroll the child in school and authorize medical treatment? To collect public benefits or social security for the child? A Probate guardianship can do that.

What about getting the child on your client’s health insurance? Guardianship may or may not work. Make sure your client has a written proof that a guardianship or custody order will satisfy the insurer because some demand adoption.

Does your client want to get the child SSI? A guardian appointed by Probate Court can apply for it and the client’s income will not be a qualifying factor. However, if the child is adopted, the parent’s income will be taken into account when determining the child’s eligibility.

If a child is getting social security survivor’s benefits on behalf of a deceased parent, neither a guardianship nor an adoption will stop the payments. Survivor’s benefits are considered an “inheritance” by the Social Security Administration. The Probate Act allows children to inherit from a biological parent who died prior to the adoption. 755 ILCS 5/2-4(d)(2).

Guardianship will not solve an immigration problem. Adoption may, but only if the child is 16 years old or younger.

Determining Probate Guardianship

Who can act as guardian?

A person is qualified to act as guardian of a minor if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the minor and that the proposed guardian:

Is at least 18 years of age;

Is a resident of the United States;

Is not of unsound mind;

Is not an adjudged disabled person; and

Has not been convicted of a felony, unless the court finds that the appointment of the person convicted of a felony is in the minor's best interests. As part of the best interest determination, the court must consider the nature of the offense, the date of offense, and the evidence of the proposed guardian's rehabilitation.

However, someone convicted of a felony involving harm or threat to a child, including a felony sexual offense, cannot be appointed guardian.

Legal issues and standards

Standing

Standing is the right to file a petition. In minor guardianship cases, if a nonparent does not have standing, or the right to petition for guardianship, the case must be dismissed. The purpose of a standing requirement is to preserve parents’ fundamental right to raise their children.

A nonparent has standing to petition for guardianship if each parent:

Voluntarily relinquished physical custody of the child

Failed to appear for a hearing after proper notice and is unwilling and unable to make and carry out day to day child care decisions or

Consented to the guardianship in a written, dated and notarized document

The Petitioner must overcome, by a preponderance of the evidence, the rebuttable presumption that a parent is willing and able to care for the minor and that their appointment is in the minor’s best interest. 755 ILCS 5/11-5.

Child support

The Probate Act does not grant a guardian the right to receive child support from parents. However, Eckiss v McVaigh, 634 N.E.2d 476 (1994) obligates a non-custodial parent to pay child support even to third parties who are caring for their children.

Probate judges will not entertain petitions for child support, under a presumption that a parent’s inability to care for a child includes the inability to provide support. A guardian can file in parentage or domestic relations, but risks having the parent try to discharge the guardianship.

Visitation

The superior rights of the parent doctrine means that noncustodial parents have a right to visitation as long as it doesn’t endanger the child. The Probate Court can enter supervised or restricted visitation orders when it appears necesarry.

Termination or discharge of a guardian

A parent who wants to discharge the guardian and regain custody of his or her child has the burden to establish, by a preponderance of the evidence, that a material change in circumstances has occurred since entry of the guardianship. Once the parent establishes that, the burden shifts to the guardian, who must establish by clear and convincing evidence, that termination of the guardianship would not be in the best interest of the child. The statute lists the following factors that the court may consider when deciding best interests of the child:

The interaction and interrelationship of the minor with the parent and members of the parent’s household

The ability of the parent to provide a safe, nurturing environment for the minor

The relative stability of the parties and the minor

The minor’s adjustment to his or her home, school, and community, including the length of time that the minor has lived with the parent and the guardian

The nature and extent of visitation between the parent and the minor and the guardian’s ability and willingness to facilitate visitation

New requirements for guardians taking children out-of-state

As of January, 2015, guardians must follow these new restrictions on traveling and moving out of state with a child.

Moving:

A guardian may move within the state of Illinois, but must notify the parents of the child and the court of the new address within 30 days of moving. They do not need to ask the court for permission; and

A guardian who wants to move outside the state of Illinois must ask the court for permission. The guardian has to file a petition and notify the same people, parents and other interested parties, who were notified in the original case. The guardian may not take the child out of state without the court’s approval in a court order. Guardians must file this petition and send notice to the parents well in advance of the date on which they want to move because it could take the court some time to decide.

Traveling:

If a child is traveling outside the state of Illinois for more than 48 hours but for less than 30 days, the guardian must notify the parents and give them the address where the child will be staying. The guardian does not have to ask the court for permission;

If a child is traveling out of state for more than 30 days, the guardian has to file a petition and notify the same people, parents and other interested parties, who were notified in the original case. Guardians should file this petition and send notice to the parents well in advance of when the child might leave, as it could take the court some time to decide.

Guardians should consider these new restrictions carefully before petitioning for guardianship, as they impact a guardian’s ability to move and travel freely with the minor outside the state.

Short-term guardianships

A nonparent may not need to file for either guardianship or custody. A short-term guardianship allows him or her to enter into a private agreement with the child’s parent to assume guardianship responsibilities for up to 365 days by completing and signing a simple statutory form. Short-term guardianship, which gives the parent the ability to temporarily delegate guardianship responsibility, can be especially useful during periods when parents are hospitalized, jailed or otherwise incapacitated. The appointment takes place without court involvement and allows the guardian to enroll a child in school and to apply for and receive government benefits on behalf of the child.

A parent cannot use a short-term guardianship to avoid custodial rights of another parent. A father whose paternity is legally-established, whether on the birth certificate or by court order, must consent unless his whereabouts are unknown. Make sure your client understands that entering into a short-term guardianship without the consent of a noncustodial parent is risky, because if Dad turns up and wants his child during the period of guardianship, his rights will trump the guardian's rights.

The short-term guardianship can be for any period of time up to 365 days. However, the parent can revoke it at any time and by any means of communication. In other words, if Mom decides, after a month, that she wants her child back, she can tell your client that she revokes the short-term guardianship, pick up the child and leave.